The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) No.11377 of 2016 Chinmayee Charulaxmi …. Petitioner Mr. J. Biswal , Adv. -versus- A. State of Odisha & Others … Opp. Parties Mr. S.K. Samal, AGA Mr.D.N. Rath, Adv. (for Opp. Party No.4) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 07.02.2024 9. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. J. Biswal, learned counsel appearing for the Petitioner, Mr. S.K. Samal, learned A.G.A for State-Opp. Party, Mr. D.N. Rath, learned counsel
Legal Reasoning
appearing for Opp. Party No.4 and Mr. S.K. Kanungo, learned counsel appearing for Governing Body-Opp. Party No.3 3. The Petitioner has filed the present Writ Petition challenging order dt.08.06.2016 so passed by Opp. Party No.2 under Annexure-4. Vide the said order, claim of Opp. party No.4 for his rejoining in the college as against the post of Lecturer in Physics was allowed by Opp. Party No.2. 4. It is the case of the Petitioner that Petitioner was appointed as against the post of Lecturer in Physics vide order dt.30.10.2010 under Annexure-1 Petitioner in terms of the order was allowed to join in the college in question and continued as such. But basing on the order passed by this Court in WP(C) No.7408 of 2018 so filed by Opp. party No.4 Opp. Party No.2 took up the appeal filed by Opp. Party No.4 and passed the impugned order by directing the Governing Body to take back Opp. Party NO.4 in his services as against the post of Lecturer in Physics. 4.1. Learned counsel for the Petitioner contended that there is no dispute that Opp. Party No.4 was initially appointed as against the post of Lecturer in Physics vide order dt.3.4.2006. But Opp. Party NO.4 since abandoned his services, petitioner was appointed in his place vide order under Annexure-1. But Opp. Party No.2 without proper appreciation of the stand taken by the Governing body-Opp. party No.3 allowed the claim of Opp. Party No.4. 4.2. It is also contended that Petitioner since is continuing as against the post in question in terms of the order of appointment issued on 30.10.2010 under Annexure-1, she will be seriously prejudiced if the impugned order is upheld by this Court and Opp. Party No.4 is allowed to join as against the post of Lecturer in Physics. 5. Mr. D.N. Rath, learned counsel appearing for Opp. Party No.4 on the other hand made his submission basing on the stand taken in the counter affidavit so filed by him. 5.1. It is contended that Opp. Party No.4 was appointed as against the post of Lecturer in Physics Page 2 of 7 vide order of appointment issued on 03.04.2006 under Annexure-B/4. Pursuant to the said order, Opp. Party No.4 joined in the college on 05.04.2006. But with effect from 02.08.2010 when Opp. Party No.4 was not allowed to discharge his duty, petitioner made an application before Opp. Party No.2 on 19.08.2010 challenging the action of the Governing body vide Annexure-D/4. On receipt of the application under Annexure-D/4 and on being requested, Principal cum Secretary of the College vide his letter dt.10.11.2014 under Annexure-E/4 series while submitting a report, indicated that Petitioner is absent from his services w.e.f 02.08.2010 and pursuant to the advertisement issued by the College on 24.09.2010, Petitioner has been appointed vide order dt.30.10.2010 where she joined on 01.11.2010. 5.2. It is also contended that Opp. Party No.4 for the first time was issued with a show-cause on 07.03.2011 for his unauthorized absence. But the same could not be handed over to Opp. Party No.4. It is also contended by the learned counsel appearing for Opp. Party No.4 that on being directed by Opp. Party No.2 Sub-Collector, Puri cum President Governing body of the college submitted a report vide letter dt.15.12.2015 under Annexure-E/4 series. In the said report, Sub- Collector, Puri-cum-President of the Governing body clearly indicated that the appointment of the Petitioner is totally fictitious and fabricated. It is also indicated in the report that Opp. party No.4 when remained absent from his duty w.e.f 01.08.2010, pursuant to Page 3 of 7 the decision taken by the Governing Body in its resolution dt.14.01.2011, a show-cause was issued to Opp. Party No.4 for his unauthorized absence. But the said show-cause when was not accepted, the Governing Body in its resolution dt.22.06.2011 requested the Principal to issue a 2nd show-cause. But Principal of the College could not produce either the 1st or 2nd show cause ever issued to Opp. Party No.4. While giving such a letter, President of the Governing Body also opined that prior to termination of the services of Opp. Party No.4, Petitioner was appointed as against the post of Lecturer in Physics. 5.3. It is contended that considering the report so submitted by the Principal-cum-Secretary of the College and the President of the Governing Body vide Annexure-E/4 series, Opp. Party No.2 while deciding the issue, came to a finding that Opp. Party No.4 was never issued with any show-cause in terms of the resolution made by the Governing Body on 22.06.2011. Since prior to termination of Opp. party No.4 from his services, petitioner has been appointed as against the said post, Opp. Party No.2 while allowing the appeal directed the Governing Body to allow Opp. Party No.4 to join in the post in question. It is accordingly contended that Opp. Party No.2 after going through the materials placed by the Petitioner and by the College has rightly passed the order and it requires no interference. Page 4 of 7 6. Mr. Kanungo, learned counsel appearing for Opp. Party No.3 on the other hand contended that Opp. Party No.4 though was appointed as against the post of Lecturer in Physics vide order dt.3.4.2006 but he remained absence w.e.f 01.08.2010. Accordingly, a show-cause was issued to him in terms of the resolution passed by the Governing body on 14.01.2011. As the said show-cause could not be served on the Opp. Party No.4, Governing Body in its resolution dt.22.06.2011 directed the Principal to issue another show-cause. But the show-cause could not be served Opp. Party No.4, was absent w.e.f 01.08.2010. Governing Body taking into account the difficulty faced by the students resolved to fill up the post and in terms of the advertisement issued by the Governing Body, Petitioner was appointed as against the post of Lecturer in Physics vide order dt.30.10.2010. 6.1. Learned counsel appearing for Opp. Party No.3 accordingly contended that since Opp. party No.4 remained on unauthorized absent w.e.f 01.08.2010, in his place, petitioner was duly appointed. The said fact though was brought to the notice of Opp. party No.2, but Opp. Party No.2 allowed the claim of Opp. Party NO.4 with passing of impugned order in question. 7. In spite of notice, no counter affidavit has been filed by the State-Opp. Parties. However, Mr. S.K. Samal, learned Addl. Govt. Advocate contended that since the dispute revolves around the action taken by Page 5 of 7 the Governing in terminating Opp. party No.4 and appointing Petitioner in his place, the issue can be decided by this Court basing on the available materials. 8. Having heard learned counsel appearing for the parties and after going through the materials available on record, this Court finds that Opp. party No.4 was appointed as against the post of Lecturer in Physics vide order of appointment issued on 03.04.2006. As found from the stand taken in the counter affidavit so filed by the Governing body, the Governing body initially in its resolution dt.14.01.2011 resolved to issue a show-cause to Opp. Party No.4 for his unauthorized absence w.e.f 01.08.2010. As the same could not be served. Governing body again passed a resolution on 22.06.2011 authorizing the Principal and to issue an other show-cause to Opp. party No.4. But in the counter filed by Opp. party No.3 no document has been enclosed showing issuance of the show- cause in terms of the resolution passed by the Governing Body either on 14.01.2011 or on 22.06.2011. No order of termination has also been enclosed to the counter filed by Opp. Party NO.3 showing termination of the services of Opp. Party No.4 prior to taking step to fill up the post by appointing the Petitioner vide order dt.30.10.2110. Since for his unauthorized absence, Opp. party NO.4 was never issued with the show-cause, nor any order of termination was passed terminating him for his services, as per the considered view of this Court Page 6 of 7 Petitioner could not have been appointed by the Governing Body vide order of appointment issued on 30.06.2010. Since the very appointment of the Petitioner has been made during subsistence of the appointment of Opp. party No.4, as per the considered view of this Court , the said order of appointment does not create any right in favour of the petitioner to continue. While holding so, this Court finds no illegality or irregularity with the impugned order so passed by Opp. party No.2 on 08.06.2016 under
Decision
Annexure-4 to the Writ Petition. Accordingly, this Court is inclined to dismiss the Writ Petition and dismiss the same accordingly. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 12-Feb-2024 17:56:28 Page 7 of 7